Volume 9 — Tennessee Reports

<p>The statute 29, Ch. % s 10, (which subjects trust estates to execution for the debts of the cestui que trust,) and the 5th Geo. 2, ch. 7, s 4, (by which the provisions of that statute are extended to the plantations,) are in force in Tennessee.</p> <p>But the statute extends only to trusts, which are raised by, or result from,a conveyance, and not to constructive trusts,or those merely covenanted or agreed to be raised.</p> <p>The equitable interest which an obligee has in the land covenanted to be conveyed to him, is not such a trust or interest, as is subjected to execu> tion at law by the provisions of said statutes*</p>

This was an action of Detinue brought in the circuit court of Maury county for two female slaves, Minta and Nancy. The property in said slaves was originally in Henry G. Kearny, who on 30th January 1812 conveyed them (with other property) to one Jas. M. Lewis, in trust V L A. d / / for the wife and children oí said Kearny; this deed was proved in the court of pleas and quarter sessions of Mau-ry county, at its September term 1812.

John Allison brought covenant against Margaret Allison, surviving Executrix of Frank Allison, and declared issue upon a deed of bargain and sale, which upon Oyer is thus; “the said F. A. for and in consideration of the sum of one thousand dollars in covenant money to him in hand paid, the receipt &c. &c. hath given, granted, bargained, sold, aliened, enfeoffed and confirmed unto the said John Allison his heirs and assigns forever, one certain tract or parcel of land…

This was an agreed case, presenting two questions; first, whether one partner could bind the firm, by a sealed instrument or deed executed in consideration of a partnership debt, where the partnership agreement was under seal, but containing no such power; and secondly, if he could not, whether an action could be sustained against the partnership, upon the original simple contract debt.

Lovelace and Godfrey Carriger were partners as Iron mongers,and bought goods from the plaintiffs; Lovelace alone gave six several notes in the name of the firm un-derseal; the articles of copartnership did not authorize either party to bind the other under seal.

<p>False and fraudulent representations as to the quality or title of property (which forms the consideration of a bond or obligation,), will not avoid it at law; the party injured must resort to a court ofEquity for relief.</p>

Detinue for a slave. Isaac Bledsoe devised a slave nam- • ed Tom, to his wife Catharine Bledsoe for her life, remainder to his son, Isaac Bledsoe. John C. Hamilton recovered a judgment against the son; an execution under this judgment was levied on the said slave during the lifetime of the said Catharine, and the interest of the said Isaac Bledsoe, the son, and was sold by the sheriff to said Hamilton.

<p>Real estate in the hands of heirs cannot be subjected to the satisfaction of a judgment obtained against the ancestor in his lifetime, without first proceeding against the personal representatives.</p> <p>A judgment rendered against heirs, upon two returns of nihil to a scire facias, founded on a judgment rendered against their ancestor in his lifetime, is void; and an execution issued on such judgment, will be quashed on motion.</p>

<p>The issuance of a grant is conclusive evidence of a survey of tire iand a J covered by it.</p> <p>An actual survey is evidence of the Iand granted, although the calls of the grant do not cover any part of the land.</p> <p>Where the original boundaries of a tract of Iand cannot be found, and it is afterwards resurveyed, if the resurvey reasonably conforms to the calls of the grant, the grantee will hold the Iand contained-in the resurvey against the State, or persons who have entered the Iand after the resurvey.</p> <p>Where a grant for 1S80 acres of land was dated in 1794, and called to begin “a quarter of a mile above the mouth of a creek at an ash on the bluff of the river” and in 1806 the land was resurveyed, the surveyor beginning at an ash on the bluff, which was newly marked, and on actual admeasurement the ash was found to be 96 poles from the mouth of the creek — it was held that this was the beginning corner of the tract, although it could not be proved that it was marked as the beginning corner upon the original survey.</p>

<p>A paper signed and sealed in Marik with verbal authority (given at the time) to fill it up as a prison bounds bond, which is afterwards done, is void as to the party so signing and sealing, unless re-delivered or acknowledged after it had been filled up.</p>

<p>Whore slaves are given to a wife for her life, and after her death to her children, the husband may dispose of the wife’s interest.</p> <p>If in such case the donee, or purchaser from the husband, manifest a 3 1 3 disposition to deprive the children of their rights by claiming the property as his own &c., the children may by bill in equity compel him to give security for the forthcoming of the property after the termination of the life estate.</p>

(Trover for a marc..) Archibald & Geo. M’Neill (Mcr-chants of Nashville,) hired from the defendant in error, a mare to ride from Nashville to Franklin and back again, rjpjle mare was hired for the purpose of bringing some specie from Franklin to Nashville, but this fact was notcom-municated to Brooks.

<p>When a man induces another by false representations and false reading, to sign his name to a note for a different amount than that agreed upon, it js not forgery under the statute — but a cheat for which the party may be indicted.</p> <p>It a defendant is put upon his trial and be found guilty — and there be no issue in the record, the judgment will be reversed for this error — although it appear the defendant was personally present at the trial.</p>

Robbins was embarrassed in his circumstances and conveyed by bill of sale, to his kinsman Derrick, a slave named Moses, to prevent his being sold to pay his debts. The consideration stated in the bill, was $>500, but there is no doubt this bill of sale was fraudulent as to creditors. Moses was given to M’Whirter for Hannah and $¡200, under the direction of Robbins, and the possession of Hannah was delivered to Robbins.

W. Blackford sued Kennedy at law. — Jack gave bond as security for Blackford, with condition, “that Blackford should prosecute the suit, hy him instituted against Kennedy with effect — or in case of failure, pay and satisfy all costs and charges, that may accrue, by wrongfully bringing the suitf on this Kennedy has brought debt, and declared on a bond for $>250 00.

<p>A sale of land by the sheriff under a judgment against heirs, where the scire facias does not name them, and where it is not executed upon them personally, is void and conveys no title to the purchaser.</p> <p>The defendant in ejectment may show that the title of the lessor is void; and thus protect himself, although he has no title.</p>

<p>A. gave a bond to the sheriff to keep the prison bounds, which was as-' signed by the sheriff to the plaintiff — at the end of fifteen days the jailor gave the plaintiff notice that he would discharge A. unless the prison expenses were paid. Held, that under our statutes the jaijor could legally discharge A. upon notice and non-payment of the prison expenses — and that such discharge operated as a release to the securities in the bond.</p> <p>If a person confined to the prison rules feeds himself, the jailor cannot legally discharge such prisoner upon non-payment of the prison expenses— hut the onus of proving that the prisoner did feed and furnish himself lies upon the plaintiff.</p>

<p>If the circuit court charge the jury upon a mere supposed state of facts, which do not exist in the cause, it is not so substantially erroneous as to authorize! the supreme court to reverse the judgment.</p> <p>If A. promise B. that he will surrender to B. so much of his (A’s.) grant as was covered by B’s. 640 acre entry — and this promise be made by parol, it cannot be regarded as evidence, or noticed in an action of ejectment. — It is no agreement about boundary.</p> <p>It is the settled law of this State that an entry, made in Carter’s office for lands lying west of Brown’s line, is void — and that the grant cannot be referred to such entry, although special for the land granted.</p> <p>The act of 1819, ch. 50, does not confirm such entry — it only extends to the confirmation of grants — and the grant founded upon such entry being of a younger date, is not aided or confirmed by the act.</p>

<p>Where a certiorari is applied for in open court, and the court refuses to grant it, the party applying for it, may except to the opinion oi the court, and prosecute an appeal in the nature of a writ of error.</p> <p>The reputed father, of an illegitimate child, who has legitimated it by virtue of the act of 1805, ch. 2, is not in consequence thereof entitled to its custody.</p> <p>The county court has no power to put such child in his custody, or to bind it out contrary to the wishes of the mother, unless the child is a pauper.</p>

<p>, , All the facts stated in a bill need not be proved, if those stated and proved are sufficient to entitle the complainant to relief. *</p> <p>Where tile father paid the purchase money for land, and had the bond for title made to his son and himself jointly, this is an equitable advance-ment to the son of an undivided moiety.</p> <p>Where a fath er in such case procured the deed to be made to himself alone, he becomes a trustee of the legal estate for the son, for a moiety, and upon the death of the son, his heirs in equity may divest a moiety of the legal estate out of the father.</p>

Error from the circuit court of Montgomery county. This was an action of debt in the debet and detinet tor ‡133 33 cents, commenced by attachment. The defendant was a citizen of Kentucky, and this was the fact alleged why process could not be served upon him; the at-tachmentwas in the usual form, without averring that the party praying the same was a citizen of Tennessee.

<p>Where one of two joint plaintiffs in a writ of error, dies, before enora are assigned, the suit must be revived before the expiration of the second term after the death, or the writ of error will be abated on motion.</p>

<p>At common law, where one joint plaintiff, in a writ of error, died before an assignment of errors, the writ abated; but if the death were after the assignment of errors, it did not abate the writ.</p> <p>Where the writ is abated, a remittitur must be entered, sending the record to the court from whence the writ of error was prosecuted, and the court below can issue execution against all the defendants, without noticing the death; but it cannot be levied on the goods of the deceased in the hands of his executors, or on the lands in tire hands of the heirs.</p> <p>By the laws of this State, the representative of the deceased party, may, at any time within the first and second terms after the death of the party, cause himself to bo made a party, aud in such a case the writ will not abate.</p> <p>But if the suit be not revived, during either the first or second terms, or if there he no personal representative, it will abate at the second term and a remittitur be entered.</p> <p>The court does not, in such case, remit, or send back the transcript of the record with the certificate, but merely a copy of the order abating the suit.</p>

<p>The penal laws of a sister State dan have no operation or effect, beyond her own territorial jurisdiction ; they therefore, cannot be noticed or enforced in the courts of other states.</p> <p>By the law of Kentucky, a divorce obtained in that state, does not re*, lease the offending party from the pains and penalties of bigamy, if he or she afterwards marry. In this case, the plaintiff was married in Kentuc-. ky — and was there divorced, (she being the offending party;) she after-wards removed to, and marrie'd in this State; held, that the marriage was legal, and that she was entitled to dower out of lands her husband died seised and possessed of.</p>

<p>Where the dividing lines of a tract of land cannot be certainly identifi-e(j, tjle pal.t¡es may agree f,y parol to establish the boundary between them; and this agreement can be proved by positive testimony, or may be inferred horn circumstances.</p>

<p>An appeal in the nature of a writ of error may be prosecuted in “forma pauperis.”</p>

<p>A Justice of the Peace, under the act of 1777, ch. 2, has no jurisdiction to render a judgment upon an attachment, against the inhabitant of another state; and a judgment so rendered is a nullity.</p> <p>An execution under such judgment levied upon land, and returned by a constable to the county court, gives no authority to that court to make an order for the sale of the land levied upon, or any pari thereof.</p> <p>A sale made by the sheriff, by virtue of such order, does not divest the owner of his interest in the land sold, or pass any title or right to the ven-dee.</p> <p>If a claim be set up under the sentence or judgment of another court, this court will examine into the jurisdiction of that court; and if that court had not the jurisdiction or power, which it assumed to exercise, its sentence or judgment will be disregarded.</p>

<p>1, A re-hearing of causes in Equity may be granted at a subsequent term to that at which an interlocutory decree is made — not so as to final decrees.</p> <p>2. An appeal cannot be taken until a cause is finally decided; and a rehearing, being intended to effect the same object to be obtained by an appeal, may be had at the time'when an appeal might be taken.</p>

This was a motion made to quash an execution, which had been issued upon a judgment in ejectment, rendered by the supreme court, in favor of John Sims against Margaret D. Hess. The execution issued upwards of a year alter the rendition of the judgment; nor had any execution ever been delivered to the sheriff to execute within the year.

<p>If an intestate at his death is indebted to a bank by note under seal, and his administrator renews the note, signing his name thus: “A B, administrator of C D, dec’d.'1 the renewed note is an accord and satisfaction of the old note, and the debt becomes the debt of the administrator.</p> <p>Should a distributee pay the renewed note out of his own property, it will not create a liability against the securities of the administrator, in favor of such distributee, but it may raise an assumpsit against the administrator.</p>

<p>The surety for prosecution of a suit, taken on the issuance of a writ, is not bound for the cost of the appellate court, in case the plaintiff below obtains judgment of the court in which the suit is instituted, and that judgment is afterwards reversed on error to an appellate court, and the cause remanded for a new trial.</p> <p>Surety for the prosecution of a suit, is not liable for costs or charges beyond the judgment of the court in which the suit is instituted.</p> <p>A scire facias, the object of which Í3 to render bail liable beyond the condition of the bond, will be quashed.</p>

<p>The officer who commences the execution is bound to finish it, because an execution is an entire thing — and when property enough is levied upon to satisfy the execution, the defendant is discharged, and the officer becomes liable for the debt.</p> <p>If the officer who made the levy procures another officer to sell, which latter fails to pay over the money to the plaintiff in the execution, the officer making the levy, is subject to judgment by motion, in favor of the plaintiff in the execution.</p> <p>Notice to an officer of an intention to move against him for judgment, is a sufficient application to him for the money which he is bound to pay over.</p>

<p>A bond which is left blank, and is filled up after the sureties sign it, ,i is void, unless it is re delivered by them after the blanks are filled. The 1 sureties in such a bond may, when sued on it, plead non estfactum. ]</p> <p>A judgment taken in the circuit court against sureties by motion, without previous notice, may by the same court be superceded, after its rise; and at a subsequent term the sureties may assign errors in fact, and lender pleas to be tried by a jury.</p>

This was an action of assumpsit, commenced by Thompson against Nicnol in the county court of Davidson — the cause was removed to the circuit court, aud upon trial in that court, the plaintiff (Thompson) recovered a judgment for-from which judgment Nichol prosecuted an appeal in the nature of a writ of error to this court.

<p>The felonious slaying of a slave, without malice, is manslaughter.</p>

Bedford warranted Hickman before a justice of the peace, upon a note for sixty six dollars payable in current bank notes; the magistrate rendered judgment against Hickman, from which he appealed. In the circuit court, the facts were agreed, “that if the justice had jurisdiction, judgment should be given for the plaintiff, Bedford, but if be had not, that judgment should be entered up for TT. , „ . , 0 . * .

<p>The defendant was an endorser on a note payable at the branch of the Nashville Bank at Murfreesborougb; on the day the note became due, it was presented for payment at the bank which was refused; the same day a notice was put in the post office directed to the defendant at Jefferson, (in the same county) where a post office was kept, and near which place the defendant resided: held, that this notice was insufficient — that personal notice, or notice left at his residence was necessary to fix the liability of the defendant.</p>

<p>A suit is commenced, and judgment obtained in the name of A, for the use of B. and C : It was held, that, although B and C were not partners,yet a payment of the judgment to either, would be a satisfaction of it, unless the defendants wore notified by one, not to pay the other, more than his proportion of the judgment.</p>

This was an indictment, commenced and tried in the circuit court of Davidson county, and brought to this court by appeal in the nature of a writ of error; on the trial in the circuit court, a bill of exceptions was taken, which shows the case as follows: “the attorney general on behalf of the State, proved, that some time in the year 1797, the defendant, (who is the plaintiff in error, in this court) and Sally Cole, appeared in the county of Davidson before Isaac Walton, a…

Donelson’s executors sued Anderson in covenant: They declare, that Anderson covenanted to convey to Donelson nine hundred acres of land out of a certain tract conveyed by H. M. Rutledge to Anderson and Strother, to be taken out of either of the four corners of the tract, in a square or oblong, at the option of Donelson. — or, Donel-son might take 700 acres in the manner aforesaid, and 200 acres out of another tract therein mentioned: that Anderson satisfied Donelson for the…

<p>A partial indemnity given by the maker to the accommodation endorser of a note, to soeurc said endorser in part, against his liability, &c. does not excuse the holder from making due demand, and giving notice to such endorser.</p>

<p>In an action of covenant, if the damages are not stated in the declaration, it is good cause of special demurrer.</p> <p>Whore a special demurrer points out a defect it may bo amended, but if no application be made to amend by the other party, he proceeds at his peril, and if the objection is good, judgment will be rendered against him.</p>

<p>Whore the plaintiff prosecutes his own suit in person, he may, under the act of 1811, oh. 114, lile tho note or bond on which the suit is brought, in lieu of a declaration; but where an attorney is employed, a declaration is still nocessary, and when the note is assigned the declaration is indispensable in all cases.</p>

<p>Tlie admissions or declarations of an endorser, that he assigned the noto to the plaintiff, are not admissible as evidence against the maker</p>

<p>Where the obligor had an election to pay the sura specified in the bond, in properly, to be delivered within a specified time, atone ofseveral places: held, that a plea by the defendant, that the property was ready at one of the places, without averring that the plaintiff was notified thereof, is insufficient.</p> <p>A tender of property in discharge of the condition of a bond or note, made after the same is due, and before the suit is instituted, is no defence to the action.</p>

The defendant was indicted in the circuit court of Lincoln county for the murder of Edward M’Bride; was convicted, andjudgment of death pronounced uponhim; from this judgment he prosecuted an appeal in the nature of a writ of error to this court.

An information was exhibited to the Hon. Wm. E. Kennedy, one of the circuit judges of the State, against Calvin M. Smith, a member of the bar, and an attorney m the circuit court of Maury county, chargipg; 1st. that the said Smith, whilst an attorney of said court, had accepted in the State of Tennesee, a challenge from Robert M. Brank to fight a duel; 2d, that said Smith, in the State of Kentucky, did fight a duel with said Robert M. Brank; 3d, that in said duel said Brank…

This cause was argued by Mr. G. S. Yerger lor the plaintiff in error, the Nashville Bank, and by Mr. W. L. Brown for the defendants; — the facts of the case are fully stated in the opinions of the judges.

<p>Whore one of several defendants prosecutes a writ of error to the supreme court, if there is no error in the judgment, the supreme court, upon affirming it, must render judgment against him without noticing the other defendants.</p>

<p>A deedof partition, with seven years possession of the land covered by it, is such a color of title as will protect the possession under the act of limitation.</p> <p>When the plaintiff introduces a record as evidence, the defendant is entitled to have the whole of it read.</p>

The defendant was indicted for taking two dollars as fees for collecting money on an execution, put into his hands, as constable, wlién no such fees were due him. The facts were, that he had the execution in his hands, but .before he collected it, the defendant in the execution paid the money due upon it to the plaintiff.

This cause was argued at a previous term of the court, before judges Whyte and Catron, (Peck, Judge, being disqualified from setting, as he was related to one of the , . , ° . , t J parties.) At that term no judgment was given, J udges Whyte and Catron disagreeing in opinion.

<p>The provisions of the act of 1801 ch, 6, see. 2, extends only to cases where the defendant has property in Tennessee in his own right, and not as administrator.</p> <p>The remedy given by the act of 1784 ch. 11, against heirs for lands de «¡ended, must be strictly pursued before tho lands can bo reached.</p> <p>A foreign judgment creditor has no remedy against tho lands in this state, descended to the heir, by force of the foreign judgment; he must proceed, thro’a domestic administrator and in the manner prescribed by the act, of 1784, ch. 11.</p> <p>Tire heirs hare a right, by the act of 1784, oh. 11, to contest the justice of tire original demand with the creditor of the ancestor, to the full extent, that the executor or administrator had when he was sued.</p> <p>The heir has a right, upon a sci. fir. against him, to contest, upon a collateral issue with the personal representatives, the plea of fully administered.*</p>

<p>A court of equity will not rescindan entire contract in part, but if a vendor lraudulently represent a given point as his line — when in fact the line is a considerable distance south of the place shown — compensation will be decreed to the vendee for the deficiency in the value of the land, between the line shown and the real line.</p>

<p>On the 12th January 1829 a judgment was rendered in the supreme couit at Nashville against A; an execution issued on this judgment, and came to the sheriff’s hands 9lh February following: on the 21st and 24th January 1829, two judgments were also rendered in the county court of Lincoln, against A; upon which, executions issued, and came to the sheriff’s hands 6th February following — the sheriff levied on personal property, and sold under all the judgments but the property was not sufficient to satisfy them; — held, that the judgment rendered in the supreme court must be first satisfied.</p> <p>The statute 29, Char. 2 — sec. 3, providing, that the personal property of a debtor should only be bound from the delivery of the execution to the sheriff, is not in force in Tennessee.</p> <p>An execution binds personal property from its test; which, when it issues from the term wherein the judgment was rendered, the court inclined to think, means the day on which it was rendered.</p>

<p>A certiorari will lie, to bring a causo in equity from the chancery to the supreme court, where an appeal was prayed for, but was omitted to be put on the record by the clerk.</p>

This cause was argued at a previous term of the court, before Judges Whyte and Catron (Peck, Judge, being disqualified from sitting, having decided the cause in the court below.) At that time no judgment was given, — ■ Judges Whyte and Catron disagreeing in opinion.

<p>Courts of equity and courts of law have concurrent jurisdiction of matters of account.</p> <p>The owner of land, after a judgment in his favor in ejectment, or when he obtains the possession by other means, can call upon the desseisor, in equity, to account for the mesne profits of the land by him received.</p> <p>A person to avail himself of the advantage of a bona fide possession, upon a bill filed for an account of mesne profits, to limit the account to-the commencement of the suit, must be ignorant of all the facts and circumstances relating to his adversary’s title.</p> <p>In the deraignment of title, a person is bound to take notice of every dcednecessaay to make out his title; and if his own title deeds disclose a title in another, to the same property, this will be cunclusive notice to him, of the existence of such title, and he will bo bound by it. If the party, to be affected by laches in not bringing suit for mesne profits, be under any disability, the lapse of time will not operate to limit his account for mesne profits to the commencement of the suit, either by the common law or by statute.</p> <p>Our statute of limitations does not limit the claim of an infant for mesne profits, to throe years next preceding the infants suit in ejectment for the land; and upon a bill filed by the infant, upon his attaining full age, and within ihe time limited by statute, to have an account for mesne profits, a court of equity will decree an account from the time the infant’s title accrued, or from the defendant’s possession, or on receipt of the mesne profits, down to the cesser of that receipt, and that whether received fore his attaining full age or after, such disseisor being viewed in chancery, either as guardian, bailiff or trustee.</p> <p>The act of Assembly allowing and giving the defendant the value of his improvements, made upon the land, in an action of ejectment, or by suit for the same, are unconstitutional and void.</p>

<p>When judgment by default has been taken against a defendant, in attachment, the court may, at any time during the term, set it aside, upon defendant’s replevying the property attached, and offering to plead.</p> <p>In such case the court has no power to impose upon defendant any terms or conditions by which he might be prevented from pleading in abatement.</p> <p>When a plea in abatement commences improperly or concludes in bar, the plaintiff may demur either in bar or abatement.</p>

<p>To constitute perjury, in swearing to the plea of non est factum, upon a trial before a magistrate, it is necessary that the plea should be in writing, and be signed by the party who pleads it.</p> <p>If the indictment omit to charge that the plea is in writing and signed by the party, it is fatal upon demurrer.</p>

Trespass, for entering a Smith’s shop and taking a sett of blacksmith’s tools, whilst the smith was using them.— The tools were levied upon by virtue of an execution, issued by a justice peace, upon a judgment obtained against Bell (the smith.)

<p>Where the defendant, (in a suit before a magistrate) proves a set off, larger in amount than the plaintiff’s demand, he is entitled, by the act of Í815, ch. 53, to judgment for the excess over plaintiff’s demand.</p> <p>In such case, if the plaintiff appeal to the county court, and thence to the circuit court, where a large judgment is rendered against the plaintiff, the securities in the appeal from the county to the circuit court, are liable for the costs, but not for the amount of the judgment.</p>

In this case judgment was recovered against the administrators of Williams, before a justice of the peace, without any defence on their part, an execution was issued and returned “nothing found;” the papers were then filed in the office of the clerk of the county court, pursuant to the act of 1822, ch. 43, a scire facias was issued against the defendants, to show cause &c. To this scire facias, they pleaded fully administered, which plea was demurred to.

<p>The heir of a mortgagee, or the assignee of such heir, may filo a bill of revivor without joining the personal representative, to revive a suit instituted by the mortgagee in his lifetime to foreclose the equity of redemption.</p>

<p>,. , I he proceeding returned by the justice did not shew he granted an appeal, except the recital in the appeal bond — held, that the circuit court had r no jurisdiction., 2d. In such case the cause should be stricken (rom the docket, and no costs allowed in the circuit court.</p>

In this case, a caveat was entered by the now plaintiff in error, in the county court of Cocke county, to prevent the probate of the last will and testament of Joseph Huff, Sen’r. deceased. The issue of devisavit vel non was made up to try the validity of said will. The case was first tried in the county court, where a verdict was found against the will.

<p>Under the acts of 1824, ch. 17, and 1825, ch. 57, for the relief of insolvent debtors, where the ca. sa. is executed, the bond, by them contemplated to be given, must be conditioned for the appearance of the party at court from which the writ issued, and to which the same is returnable, and returned with the writ — and not to the court of the county where tho defendant resides.</p> <p>If the form of the bond be substantially correct, tho court will not discharge the defendant on motion.</p>

<p>The distributees of an intestate (of whom the administrator is one) agree that the intestate’s estate shall be sold at auction, and each distribu-tee purchase an amount of property equal to his distributive share, which, on settlement between the administrator and distributees, is to be set off against the debt created by the purchase at the sale; — the sale was had, and the husband of one of the distributees purchased an amount equal to the share to which he was entitled in distribution in right of his wife, for which he executed his note — the husband died during the coverture, and before the final settlement of the administrator with the distributees. Held that this was such a reduction of the distributive share of the wife to possession, that the property vested absolutely in the husband; and on his death passed the same to his administrator or executor.</p> <p>The fee simple interest of a feme covert in lands belonging to her in descent cannot be taken from her and vested in another person, without her previous assent thereto, given upon private examination before a competent authority to make such examination.</p>

This suit was instituted in the name of William Groom for the use of James Rucks, upon a note executed by Vincent to Groom. The consideration of the note, was to suppress a prosecution for an assault and battery, which was done without the permission of the court.

<p>One of several persons, jointly indicted for a riot, although he has pleaded and defended separately, is not a competent witness for his co-defendants.</p> <p>Where defendants are jointly indicted for misdemeanors they cannot be witnesses for or against each other, until discharged from the prosecution or convicted.</p>

<p>An indictment for forging a receipt must charge, that the person, to whom the receipt purported to be given, was indebted to the person whose name was forged.</p> <p>Where the person summoned as a juror has, from conversing with the witnesses, or hearing them speak on examination before a magistrate, formed and expressed an opinion, it is a sufficient cause of per-emptory challenge.</p>

<p>Where the decree of the chancery court is affirmed in the supreme court, no judgment or decree can be rendered against the defendant’s securities in the appeal bond, and if such decree is rendered, it is -void as to the securities.</p>

<p>If the Christian name of a plaintiff is omitted in a declaration, such declaration is defective and may be demurred to.</p> <p>The supreme court will not remand a cause for amendment, which amendment might have been asked for and obtained in the court below.</p>

<p>A note is executed for $607, payable in certain bank notes — it is after-wards agreed to extend the time of payment, and a note is executed for $607, payable in specie; the bank notes were only worth about $456 — held, that this is usury.</p>

<p>The clerks of the different courts in th¡3 State have no right to tax a fee of fifty cents for copying the bill of costs on an alias execution.*</p>

<p>Where the plaintiff recovers judgment, his security for the payment of costs &c. is not liable for costs taxed and adjudged against the plaintiff, upon setting aside a non suit which he has suffered.</p>

<p>Where A fraudulently represented his horse to be sound, when he was unsound, and thereby induced B to purchase him, for which B gave his note: held, that before payment of the note, B was entitled to relief in equity, against A or his assignee, with notice.</p> <p>In such case, if B upon discovering the fraud, did not offer to return the horse, an issue wll be directed to ascertain the damages sustained by him; and the defendant will be perpetually enjoined from proceeding against B for the amount of damages assessed by the jury.</p>

<p>The act of 1S27, ch. 49, sec. 1, empowering the county court, (25 members being present,) to levy a tax to meet the current expenses of the year; and the act of 1824, ch. 128, authorizing the county courts of the Western District, to lay a tax of 12J cents on the owners oí land for clearing out the streams &c. are unconstitutional and void.</p> <p>The taxing power belongs exclusively to the legislature; this constitutional right cannot be delegated to the county court.</p>

<p>Upon amotion against a constable and his securities, for a failure to pay over money collected by him, it was held, that a notice to the constable of the intended motion, wqs sufficient to authorize a judgment against him and his securities; notice to the latter is not required.</p>

<p>A plaintiff wlio resides out of the limits of the Stato, is not “beyond seas," within the meaning of the exception in the act of limitation of 1715, ch. 27, sec. 9.</p>

<p>The Sheriff, (after a levy upon land in the actual possession of the de™ Cendant at the time of the levy,) must give the defendant twenty days’ notice, in writing, of the time and place of sale, or the sale will be void.</p>

Judge Catron. The land in controversy lies west of the Congressional reservation line, in the county of Maury.

<p>When the judgment rendered in the county court, is under fifty dollars, It will not be anested upon the ground of want of jurisdiction in the «court; — it must be pleaded in abatement.</p>

<p>A judgment was obtained against A before a magistrate: — the execution of the judgment was stayed by B. Within a year after the expiration of the stay, an execution issued against A and B, and was returned, “no property found.” A, the principal debtor, died, and six years after, an execution issued against A and B, suggesting the death of A; — held, that it was regular, and B’s property was liable to its satisfaction.</p>

<p>Where a ca sa. is executed on a defendant, and he gives bond and security as required by the act of 1824, ch. 17, he may take the oath of insolvency without any other notice than that furnished by the bond.</p>

Williams instituted an action of covenant in the county court of Davidson county, against the defendants, upon a bond executed by them, jointly, with Roger B. Sapping-ion. They pleaded — 1st, covenants performed; 2d, that they were securities for Sappington; and that usurious interest, to a large amount, was included in the note, hy reason of a corrupt agreement between Sappington (their principal) and the plaintiff.

<p>If the grantee cause the lines to be run and marked in reasonable con-» formity to the calls of the grant, though they were incorrectly marked, yet yet if done in honesty and good faith, such re-marking is good against the State and subsequent enterers. And after the grant is plainly marked out the owners thereof are estopped, to disclaim the boundary themselves have fixed.</p> <p>The doctrine of estoppel is that upon which re-marking should be placed — the rule being then certain and fixed.</p>

At the Jan. term 1831 of the supreme court, Hadley’s administrators recovered a judgment against Hickman for eighteen hundred and sixty dollars, eighty and two third cents; at the same term, Hickman recovered a judgment against Hadley’s administrators for nine hundred and seventy two dollars, twenty two cents.

Covenant from Davidson circuit court. This was an action of covenant brought by thé defendant in error, Bell, as assignee &c. against M’Nairy, upon an obligation executed by M’Nairy and others, in which they “promised four years thereafter to pay John G. Meaux or order at Nashville $5,150 00 in good current bank notes, such as will be received in deposit in the Nashville bank, or the bank of Kentucky, and such as will pass at par at the time of payment; if not paid when due…